Doesn’t the Government’s argument sound weak to you? As I read the NLRB’s brief in Noel Canning (filed September 13) I’m left with the feeling that the bulk of the brief deals with an explanation of why the words in the constitution do not mean what they say. [Read the brief]

The gut question is whether the President properly made a “recess appointment” when he appointed two individuals to be Members of the NLRB during a period when the Senate was holding only “pro forma” sessions.

Here is an Outline of the Government's (NLRB's) Argument

A. The President’s recess-appointment authority is not confined to inter-session recesses of the Senate

Intra-session recess appointments are necessary to serve the purposes of the Recess Appointments Clause

Long-standing practice supports intra- session recess appointments

B. The President may fill any vacancy that exists during the recess of the Senate

The reference to “Vacancies that may happen during the Recess” can be reasonably read as including vacancies that exist during the recess

The Clause’s purposes are best served by allowing the President to fill a vacancy that exists during a recess

Since the 1820s, the vast majority of Presidents have made recess appointments to fill vacancies that arose before a particular recess but continued to exist during that recess

Before 1823, there was no settled understanding that the President was precluded from filling vacancies during a recess that first arose before that recess began

C. The Senate is in “recess” for purposes of the Recess Appointments Clause when, for 20 days, a Senate order provides for only fleeting, concededly “pro forma” sessions at which “no business” is to be conducted

The Senate is in recess when it cannot receive communications from the President or participate as a body in the appointment process

Despite the pro-forma sessions, the 20-day period at issue here bore the hallmarks of a recess

The mere possibility that the Senate might suspend its “no business” order during the 20-day period did not prevent that period from constituting a recess

Historical practice does not support the use of pro-forma sessions to prevent the President from making recess appointments

Even assuming the pro-forma sessions could satisfy the Senate’s other constitutional obligations, they impermissibly disrupt the balance struck by Article II